Citation Nr: 1512735
Decision Date: 03/25/15 Archive Date: 04/01/15
DOCKET NO. 11-13 577 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New York, New York
THE ISSUES
1. Entitlement to service connection for a bilateral eye disorder.
2. Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected degenerative disc disease of the lumbar spine.
3. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected left knee scar.
4. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder.
REPRESENTATION
Appellant represented by: New York State Division of Veterans' Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A.J. Turnipseed
INTRODUCTION
The Veteran served on active duty from October 1982 to October 1986.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2009, June 2010, and September 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York.
In June 2012, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record.
In June 2014, the Board reopened the claim of service connection for residuals of an eye injury (as it had been previously denied in a September 2002 rating decision), and remanded the reopened claim, as well as the other claims on appeal, for additional evidentiary development. The case now returns to the Board for further appellate review.
This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.
For reasons discussed below, the issues of service connection for a bilateral eye disorder and cervical spine disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. A right knee disorder is not causally or etiologically related to any disease, injury, or incident in service; arthritis did not manifest within one year of the Veteran's discharge from service; and such was not caused or aggravated by her service-connected left knee scar.
2. An acquired psychiatric disorder is not causally or etiologically related to any disease, injury, or incident in service, and an additional disability was not superimposed upon the Veteran's borderline personality disorder during service.
CONCLUSIONS OF LAW
1. The criteria for service connection for a right knee disorder are not met. 38 U.S.C.A. §§ 1101, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2014).
2. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. VA's Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).
In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits.
In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a letter dated in April 2010, which was issued before the initial unfavorable AOJ decision in June 2010, advised the Veteran of the evidence and information necessary to substantiate her service connection claims, including on a secondary basis, as well as her and VA's respective responsibilities in obtaining such evidence and information. Furthermore, with respect to her claim for service connection for PTSD based on personal trauma, such letter provided the Veteran with PTSD Personal Assault Questionnaire, which complied with the notice provisions of 38 C.F.R. § 3.304(f), and advised her that she could submit evidence of behavior change(s) and other alternative forms of evidence to substantiate her claim. 38 C.F.R. § 3.304(f)(5); Dixon v. Derwinski, 3 Vet. App. 261, 263-264 (1992); 38 C.F.R. § 3.159(e). The letter also advised her of the information and evidence necessary to establish an effective date in accordance with Dingess/Hartman, supra.
Relevant to the duty to assist, the Veteran's service treatment and personnel records, post-service VA and private treatment records, and records from the Social Security Administration (SSA) have been obtained and considered. Neither the Veteran nor her representative have identified any additional, relevant records that have not been requested or obtained.
Additionally, the Veteran was afforded VA examinations in January 2009, March 2011, and August 2014 in conjunction with the claims being decided herein, and neither the Veteran nor her representative have alleged that such examinations are inadequate for adjudication purposes. Moreover, the Board finds that such VA examinations and accompanying opinions are adequate to decide the issues decided herein, as they are based on an interview with the Veteran, a review of the record, and appropriate examinations. The conclusions and opinions proffered by the VA examiners are also based upon all of the pertinent evidence of record, to include the statements of the Veteran, and are supported by a complete rationale based upon the evidence reviewed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issues decided herein has been met.
The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in June 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.
Here, during the June 2012 hearing, the undersigned Veterans Law Judge noted the issues on appeal. Also, information was solicited regarding why the Veteran believes she is entitled to service connection for right knee and acquired psychiatric disorders, including the impact of her service-connected left knee scar on her right knee, a description of the service events to which she attributes her current psychiatric disabilities, and the type and onset of her symptoms. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, as the hearing discussion revealed the need to obtain outstanding evidence relevant to the claims on appeal, the undersigned remanded the appeal to obtain additional SSA, VA, and private treatment records, as well as medical opinions addressing the claims on appeal, all of which were obtained. Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claims decided herein. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record.
Additionally, the Board finds that, with respect to the issues decided herein, there has been substantial compliance with the June 2014 remand directives. The Board requested that the AOJ obtain addendum opinions with respect to the right knee and acquired psychiatric disorders, as well as obtain the Veteran's records from the Social Security Administration SSA and all outstanding private and VA treatment records. In August 2014, the AOJ obtained adequate VA opinions with respect to the right knee and acquired psychiatric disorders, and the Veteran's SSA and VA treatment records were associated with the evidentiary record. Notably, despite being requested to identify all outstanding private treatment records and provide authorization forms so as to allow VA to obtain them in a July 2014 letter, the Veteran did not identify any outstanding private treatment records relevant to the claims on appeal. As such, the Board finds that the AOJ substantially complied with the mandates of the previous remand and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).
For the above reasons, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claims decided herein. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Indeed, VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, she will not be prejudiced as a result of the Board proceeding to the merits of her claims.
Analysis
Service connection may be granted for a disorder resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Direct service connection may not be granted without evidence of a current disorder; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].
Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis and psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A.
§§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. A psychosis is defined as brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified (NOS), schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder and substance-induced psychotic disorder. 38 C.F.R. § 3.384. However, as the Veteran is not diagnosed with a psychosis, presumptive service connection for such is not warranted.
Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R.
§ 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
Right Knee Disorder
Review of the record shows current complaints of right knee pain, particularly since the Veteran's involvement in a motor vehicle accident in 1999. In November 2003, a private physician rendered questionable diagnoses of degenerative joint disease and internal derangement. See November 2003 private treatment record from Dr. C. Otherwise, VA treatment records show she was diagnosed with a right knee effusion in February 2010, while a January 2010 VA record reflects that an October 2009 MRI showed cartilage loss in the medial patella, mild to moderate chondromalacia, and a small area of bone edema in the medial tibial plateau. During an August 2014 VA examination, the Veteran was diagnosed with right chondromalacia patella and degenerative joint disease (DJD) of the bilateral knees. Given the foregoing, the Board finds that the Veteran has a current diagnosis of a right knee disorder.
The Board notes that the Veteran does not allege, nor does the record reflect, that she complained of, sought treatment for, or was diagnosed with a right knee disability during service, that arthritis (or DJD) was manifested within one year of discharge from service, or that such is otherwise related to service on a direct basis.
In this regard, while the Veteran's service treatment records (STRs) show she received treatment for a laceration of her right shin in September 1984, the STRs are otherwise silent for any complaints, treatment, or diagnoses referable to a disorder involving her right knee, and the Veteran specifically testified that she did not have a physical injury to the right knee during service. Rather, the Veteran has claims that her current right knee disorder is secondary to her service-connected left knee scar. Given that the Veteran has not provided or identified any lay or medical evidence in support of a finding that her current right knee disorder is directly related to service, the Board finds that direct service connection is not warranted for her right knee disorder. Additionally, because right knee arthritis was not shown during the Veteran's first post-service year, presumptive service connection for arthritis as a chronic disease is not warranted. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to consider "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory).
In support of her secondary service connection claim, the Veteran has asserted that her current right knee disorder is secondary to her service-connected left knee scar disability because she has continued to have problems with her left knee since service and, as a result, has compensated for the left knee disability by using her right knee. Parenthetically, the Board notes that, while the Veteran has reported continued problems with her left knee since service, the left knee scar is the only left knee disorder for which service connection is in effect, as the AOJ has specifically denied service connection for residuals of a left knee injury. See July 2009 rating decision.
As noted, the Veteran was afforded a VA examination in August 2014 to determine the likely etiology of her current right knee disorder. In conjunction with his physical examination of the Veteran, the VA examiner reviewed the record and interviewed her. While the examiner noted the in-service left knee injury, he also noted there was no other knee injury or treatment in service. He also noted the Veteran's report that her knees started bothering her within a few years of leaving service, but further noted that there is no evidence of treatment until 2002, when x-rays showed DJD. In this regard, the VA examiner noted that several reports show the Veteran's bilateral knee symptoms began after her 1999 motor vehicle accident. After examining the Veteran and reviewing the claims file, the VA examiner opined that the Veteran's right knee condition is not caused by or a result of the left knee scar, noting that the left knee scar is not clinically significant and would not cause or aggravate any left or right knee condition.
The Board finds that the August 2014 medical opinion is entitled to great probative weight as it is based upon physical examination of the Veteran, an interview with her, and a review of the record, which provided the VA physician with access to all relevant facts in this case. There is also no indication or allegation that the VA physician ignored or misstated any relevant fact. In fact, the examiner's opinion is based upon the evidence of record and supported by a complete rationale that addresses both aspects of the Veteran's secondary service connection claim (causation and aggravation) and the relevant evidence of record. See Nieves-Rodriguez, supra; Stefl, supra. Notably, there is no opposing medical opinion of record which suggests or shows that the Veteran's current right knee disorder is secondary to her service-connected left knee scar. Therefore, the August 2014 opinion is considered the most probative evidence of record with respect to whether the Veteran's current right knee disorder is secondary to her service-connected left knee scar.
Moreover, the Veteran, as a lay person, is not competent to relate her right knee disorder to her service-connected left knee scar as medical expertise is required. In this regard, the question of causation and aggravation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, the diagnosis of the Veteran's right knee disorders, chondromalacia patella and DJD, and etiology of such disorders requires knowledge of the inner workings of the musculoskeletal system, to include the potential impact scarring on one knee may have on the joint of the other knee. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is non-probative evidence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions).
In sum, service connection for a right knee disorder, claimed as secondary to the service-connected left knee scar, is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a right knee disorder. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C.A.
§ 5107; 38 C.F.R. § 3.102; Gilbert, supra.
Acquired Psychiatric Disorder
The Veteran is seeking service connection for an acquired psychiatric disorder, which she has asserted was incurred due to the hostile work environment she encountered as a female welder in the Navy. During the June 2012 Board hearing, she testified as to several incidents that occurred during her four years in service, during which she was harassed and sabotaged as a result of being one of 50 women on a ship with 1000 men. She has consistently reported having experienced personal assaults during service as a result of sexual harassment and physical assault as part of her hostile work environment. In addition to the foregoing, the Veteran has variously alleged that she was sexually assaulted in service. While the Veteran denied an in-service sexual assault at the June 2012 Board hearing, she has reported being sexually abused at a military base, although she has refused to provide any details regarding the incident. See April 2010 VA treatment record and August 2014 VA examination report. The Veteran argues that, as a result of such treatment, she began drinking in service and faced disciplinary action.
In addition to the general legal criteria for service connection detailed above, claims for PTSD are evaluated under special guidelines and regulations. In this regard, to establish entitlement to service connection for PTSD the evidence must satisfy three basic elements. There must be 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the 4th edition of the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). Id.
If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(1). See also 38 U.S.C.A. § 1154(b). However, in this case, the Veteran does not contend, and the probative evidence of record shows, that she was not in combat. As such, this presumption is not applicable.
Recent amendments to the regulation have eliminated the requirement of evidence corroborating the occurrence of the claimed in-service stressor in claims in which PTSD was diagnosed in service and in some claims in which the claimed stressor is related to the claimant's fear of hostile military or terrorist activity.
Specifically, 38 C.F.R. § 3.304(f) was amended during the course of the Veteran's appeal to read that, if a stressor claimed by a Veteran is related to his fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.
"Fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Here, the Veteran does not contend, and the probative evidence of record does not show, that she experienced fear of hostile military or terrorist activity. As such, this presumption also is not applicable.
There also are special considerations for PTSD claims predicated on a personal assault. The pertinent regulation, 38 C.F.R. § 3.304(f)(5), provides that PTSD based on a personal assault in service permits evidence from sources other than the Veteran's service records which may corroborate his or her account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(5). VA's Adjudication Procedures Manual (M21-1MR) also identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals. M21-1MR, Part IV, Subpart ii, 1.D.17.g.
Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance, substance abuse, episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5).
VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. In addition, VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5).
It is important to note that, for personal assault PTSD claims, an after-the-fact medical opinion may serve as the credible supporting evidence of the reported stressor. Patton, 12 Vet. App. at 280. Additionally, a Veteran's failure to report an in-service sexual assault to military authorities may not be considered as relevant evidence tending to prove that a sexual assault did not occur. AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013).
Further, the Board notes that generally, personality disorders, mental deficiency, mental retardation and other such "defects" are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. In this regard, VA regulations stat that, in the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing pre-service origin. 38 C.F.R. § 3.303(c). However, evidence of additional disability resulting from a mental disorder that is superimposed upon a congenital defect such as a personality disorder or mental deficiency during service may be service-connected. 38 C.F.R. § 4.127. See also VAOPGCPREC 82-90, 55 Fed Reg. 45,711 (July 18, 1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993).
The evidence reflects that, in March 2011 and August 2014, the Veteran underwent VA examination and received Axis I diagnoses of major depressive disorder and PTSD, which are also included in her VA treatment records, and an Axis II diagnosis of borderline personality disorder. Additionally, SSA records reflect that she has anxiety and depressive disorders, and a September 2008 record reveals diagnoses of major depressive disorder, PTSD, panic disorder without agoraphobia, and rule out bipolar disorder. As such, the Board finds that the Veteran has a current diagnosis of an acquired psychiatric disorder.
As indicated previously, the Veteran has asserts that her current psychiatric disorders are due to the hostile work environment she encountered as a female welder in the Navy. The service treatment records do not contain any complaints, treatment, or findings referable to a psychiatric disorder or symptoms manifested during service. However, the Veteran has consistently reported that she was subject to Captain's Mast every year and, in this regard, the August 2014 VA examiner noted she had several disciplinary actions against her in service. The Board has reviewed the service personnel records and did not identify any evidence of adverse or disciplinary action taken against the Veteran during service, but she remains competent to report the events that occurred during service. Such records reflect that, in July 1985, it was noted that the Veteran received treatment for alcohol abuse a year previously. Furthermore, while her STRs and service personnel records do not contain evidence of the alleged harassment and assaults other than a notation of treatment for alcohol abuse, and the Veteran's self-report of disciplinary problems, an after-the-fact medical opinion may serve as the credible supporting evidence of the reported stressor. Patton, supra.
As indicated previously, post-service treatment records show the Veteran has variously diagnosed acquired psychiatric disorders. Notably, in November 2009, a VA physician noted the Veteran had PTSD as a result of a nighttime break-in and assault. The November 2009 treatment record also details other post-service incidents which resulted in continued PTSD symptoms, including domestic violence by a boyfriend, an incident where she was kidnapped by a stranger and repeatedly sexually assaulted for four days, and the traumatic home invasion, of which she reported having intrusive memories and nightmares.
In March 2011, the VA examiner provided a detailed history of the Veteran's psychiatric history and noted that the Veteran's history of pre-military trauma, including a sexual assault at age 13, frequent physical attacks by school kids, an emotional and stressful family situation, and being sexually assaulted by an older teenager for a week. The examiner also noted the Veteran's history of post-military trauma, including a number of sexual and physical assaults that occurred after service, such as physical assaults by a relative and a home invasion in 1999. The VA examiner reported that the Veteran's pre- and post-military trauma far exceeded the experience she had in the military in terms of intensity and duration. In this regard, the examiner acknowledged that, although sexual harassment can be deemed stressful, it is not often classified as trauma, and the physical injuries she received as a result of actions by her shipmates as well as the general atmosphere of threat and animosity could qualify as a potentially traumatic event.
Ultimately, however, the examiner concluded that, given the large number of symptoms of PTSD and depression that are caused by factors other than military stressors, it is less likely than not that the Veteran's current distress and impairment are caused by or the result of her military service. Rather, it was more likely than not that the Veteran's current impairment and difficulties in functioning are caused by or a result of her pre-military and post-military history of trauma.
Because the March 2011 opinion suggested that the Veteran's psychiatric problems may have pre-existed her military service, the Board requested an addendum opinion.
In August 2014, another VA physician examined the Veteran and noted her report of a sexual assault at the age of 13, as well as during service; however, the examiner noted the Veteran did not want to talk about the in-service sexual assault and noted there is no evidence of such in her records. She did observe that the Veteran received alcohol abuse rehabilitation treatment during service. The examiner further noted the Veteran was very evasive in giving history and noted there were some inconsistencies in her current history, as compared with what is in her older records.
After examining the Veteran and reviewing the claims file, the August 2014 VA examiner opined that there is no clear and unmistakable evidence that the Veteran's major depressive disorder or PTSD existed prior to service. Instead, the examiner opined that it is less likely than not that the major depressive disorder and PTSD are directly related to service, including the reported personal assaults. In support of her conclusions, the VA examiner noted the Veteran's sexual assault at age 13, further noting that such an event can cause symptoms of PTSD and depression but stated it is common that people who experience this type of event do not seek psychiatric treatment.
The VA examiner also opined that it is less likely than not that an additional disability was superimposed upon the Veteran's borderline personality disorder during service, noting that a sexual assault at age 13 can cause a personality disorder that usually continues into adulthood irrespective of any disorder or disability the person might have.
In evaluating this claim, the Board finds that the March 2011 and August 2014 VA opinions are the most probative evidence of record with regard to whether the Veteran's current psychiatric disabilities were incurred as a result of her military service. Indeed, both physicians reviewed the Veteran's service and post-service records, but determined it is less likely than not that her current diagnoses are related to her military service, including the personal assaults and harassment she experienced as part of her hostile work environment. In finding that the Veteran's current psychiatric disabilities are more likely a result of her pre-and post-service traumas, both physicians provided detailed rationales and the Board finds probative that their conclusions are supported by the other evidence of record, including the VA treatment records which attribute her PTSD symptoms to pre- and post-service traumatic experiences. In this regard, the Board finds highly probative that the Veteran reported that intrusive memories and nightmares of the post-service home invasion are her most prominent symptoms.
In evaluating this claim, the Board notes the Veteran has reported having depression symptoms all of her life (see September 2008 psychiatric evaluation from SSA); however, the preponderance of the evidence does not reflect that a psychiatric disability clearly and unmistakably existed prior to service and was aggravated by her military service. Rather, as indicated previously, the VA examiners determined that the Veteran's acquired psychiatric disorders were less likely than not related to service, and that it was less likely than not an additional disability was superimposed upon her personality disorder during service. In sum, the Board notes that the March 2011 and August 2014 VA opinions address all relevant facts and theories of entitlement in this case and is not outweighed or disputed by any other medical evidence or opinion of record.
Moreover, the Veteran, as a lay person, is not competent to relate her acquired psychiatric disorder to in-service events as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, the diagnosis and etiology of an acquired psychiatric disorder requires knowledge of the psyche and the impact of trauma on such system. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is non-probative evidence. See Davidson, supra; Jandreau, supra; Woehlaert, supra.
Therefore, the Board finds that service connection for an acquired psychiatric disorder is not warranted. Consequently, the benefit of the doubt doctrine is not applicable in this case and the Veteran's claim of service connection for an acquired psychiatric disorder must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra.
ORDER
Service connection for a right knee disorder is denied.
Service connection for an acquired psychiatric disorder is denied.
REMAND
A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268 (1998).
As relevant, in June 2014, the Board remanded this appeal for additional evidentiary development, to include scheduling the Veteran for a VA examination to determine the current nature and etiology of any current bilateral eye disability. The VA examiner was specifically requested to identify all left and/or right eye disorders found to be present and, for each currently diagnosed eye disorder, offer an opinion as to whether at least as likely as not that such is related to the Veteran's military service, including her reports of flash burns in service as a result of her working as a welder.
Review of the record shows the Veteran was afforded a VA eye examination in September 2014 wherein the examiner rendered a diagnosis of a superficial corneal injury in the right eye (O.D.), which was diagnosed in 1983, and dry eye syndrome. While not identified as a specific diagnosis, the VA examiner noted (in the body of the examination report) that the Veteran also had bilateral cataracts (see page 5 of the examination report); however, the examiner stated the Veteran does not have any decrease in visual acuity or any other visual impairment. While the VA examiner noted the Veteran's reports of flash burns in service and an in-service burn to the right eye from a curling iron, the examiner stated that the Veteran does not have a service-connected eye condition, noting that the prior episodes of corneal foreign body injuries have not caused any long-term problems.
After reviewing the Veteran's VBMS records, the VA examiner issued a December 2014 addendum report wherein he stated that the Veteran's refractive error does not constitute an ocular pathology and reiterated that she does not have a service-connected eye condition.
While the September 2014 VA eye examiner opined that the Veteran does not have a service-connected eye condition, his failure to provide an opinion with respect to her dry eye syndrome and bilateral cataracts renders his opinion inadequate. As noted, the Board requested a nexus opinion with respect to each currently diagnosed eye disorder, but the examiner only addressed the prior episodes of corneal injury and refractive error.
Given these deficiencies, the Board finds that the AOJ did not substantially comply with the directives of the June 2014 Remand in that the physician who conducted the September 2014 VA eye examination did not provide the opinions specifically requested by the Board, which are needed before a fully informed decision may be rendered in this case. As such, the Board finds a remand is necessary in order to obtain an addendum opinion regarding the etiology of the Veteran's dry eye syndrome, bilateral cataracts, and any other bilateral eye disorder manifested by the Veteran since June 2008 (the date of receipt of her petition to reopen the previously denied claim of service connection for residual of an eye injury).
Additionally, in the June 2014 Remand, the Board also requested that the AOJ obtain workers compensation records relevant to the Veteran's claimed cervical spine disorder, as she previously testified that she received workers' compensation for her cervical spine disorder. In the Remand directives, the Board requested the AOJ give the Veteran an opportunity to identify any non-VA healthcare provider who treated her for the claimed disorders, including her workers' compensation records.
In July 2014, the AOJ sent the Veteran a letter requesting, in pertinent part, that she provide any information regarding her workers compensation claim. While the Veteran did not respond to the July 2014 letter, VA has been put on notice that Federal and/or state workers' compensation may exist and are relevant to the cervical spine claim on appeal. In this regard, the Board notes that if she received benefits from the Office of Workers' Compensation Program (OWCP) under the Federal Employee Compensation Act (FECA), VA does not need the Veteran's permission to obtain those records, as they are held by a federal agency. However, if the Veteran's workers' compensation benefits were awarded by the state, the Veteran must provide a signed release for VA to obtain the records.
Because the July 2014 Remand did not specifically direct the AOJ to contact OWCP directly, the Board finds there was substantial compliance with the previous remand. See Stegall, supra. Nevertheless, because VA has been put on notice that there are outstanding records that are relevant to the cervical spine claim on appeal, the Board finds VA must attempt to obtain any records from OWCP, in order to fulfill its duty to assist the Veteran in obtaining all evidence relevant to her appeal and, given that the claim is being remanded, the Veteran should be given another opportunity to submit an authorization form for any state workers' compensation records, if appropriate.
Accordingly, the case is REMANDED for the following action:
1. Return the record to the examiner who conducted the Veteran's September 2014 VA eye examination. The record and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. If the September 2014 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion.
(A) The examiner should identify all left and/or right eye disorders that have been manifested by the Veteran since June 2008.
(B) For each currently diagnosed left and/or right eye disorder, to specifically include dry eye syndrome and bilateral cataracts, the examiner should offer an opinion as to whether it is at least as likely as not that such is related to the Veteran's military service, to include the flash burn injuries to her eyes from welding in service or the in-service burn to the right eye from a curling iron.
In rendering the requested opinions, the VA examiner should consider the medical and lay evidence of record, to specifically include the Veteran's contention that she has had "black floaters" since service, which is considered competent lay evidence of continuity of symptomatology. A rationale for any opinion offered should be provided.
2. Contact the Veteran again and request that she identify the employer for whom the workers' compensation benefits were awarded, the date of claim, and whether it was filed with a state Workers' Compensation Board or with the U.S. Department of Labor Office of Workers' Compensation Program (OWCP). The Veteran should be requested to complete an appropriate authorization if her claim was filed with a state Workers' Compensation Board.
If the Veteran does not submit a completed authorization form or respond to the request, the AOJ should contact OWCP and request any records relevant to the Veteran. All records obtained and any responses received must be associated with the claims file.
All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).
3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs